29 Apr HR LAW NEWSLETTER – APRIL 2022

Welcome to the April Newsletter.  This month, HR Law discusses recent modern award changes as well as recent case law on standing down employees. 

Modern Awards

Modern awards, which set out the minimum terms and conditions of employment, are always subject to review and subsequent variations. For example, the Supported Employment Services Award 2020 is one such modern award currently undergoing review.  Employers must ensure they keep up to date with any applicable modern award changes to avoid non-compliance issues.  Please see below information regarding some recent modern award changes.

Unpaid Family and Domestic Violence Leave

Five modern awards containing specific unpaid family and domestic violence leave clauses have been updated following a decision made by the Fair Work Commission on 11 April 2022 (https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb57.htm).

Specifically, the Aged Care Award 2010, Children’s Services Award 2010, Fast Food Industry Award 2010, Hair and Beauty Award Industry 2010 and the Social and Community Services Award 2010, which contained specific clauses regarding unpaid family and domestic violence leave, have been updated to refer to the equivalent National Employment Standard (“NES”) entitlement. 

The changes apply from the first pay period starting on or after Tuesday, 19 April 2022.   Please note that the entitlement to this type of leave has not changed and employees (including part-time and casual employees) covered by these modern awards continue to have access to five days unpaid family and domestic violence leave each year.

Horticulture Award 2020

Changes to the Horticulture Award 2020 (“Horticulture Award”) have come into effect with regard to the rules governing pieceworkers.  The changes for pieceworkers under the Horticulture Award include the addition of new definitions for a “pieceworker competent at the piecework task”, the “average productivity of a piecework competent at the piecework task” and “hourly rate for the pieceworker”.  

In addition to the new definitions, there is also now a new minimum wage guarantee requiring pieceworkers to be paid at least the “hourly rate for the pieceworker” multiplied by the number of hours worked, for each day that they worked.  However, should the pieceworker earn more than the minimum wage guarantee for the day based on the piece work rate and their productivity, the employer has to pay the pieceworker the higher amount. 

Employers are also required to record the hours worked by all pieceworkers and the piece rates applied.

Possible new award – On Demand Industry Award

Menulog is continuing its bid in the Fair Work Commission for a highly-flexible On Demand Delivery Industry Award to be created. According to Menulog, the Road and Transport Distribution Award 2020 (“Road Transport Award”) does not meet the needs for the on demand delivery services industry including in respect of penalty rates, the minimum engagement period and unsustainable minimum wages.  Menulog considers a new modern award needs to be created, focusing on the need to promote flexible modern work practices as well as efficient and productive performance of work.  This would include various factors such as split shifts and minimum engagement provisions.  Menulog is also proposing a modern award that only has two classification levels as opposed to the grade 1 to grade 10 classification levels currently under the Road Transport Award.

Other recent modern award changes

The following modern awards have also been updated recently:

• Air Pilots Award 2020 – new classifications have been added and updates have been made to allowances and overtime arrangements;

• Educational Services (Teachers) Award 2020 – new classifications have been added and updates have been made to minimum pay and allowances;

• General Retail Industry Award 2020 – the minimum daily engagement for casual employees is 3 hours, or 1.5 hours in the circumstances set out in clause 11.3 of the modern award; and

• Hair and Beauty Industry Award 2010 – there have been penalty rate changes for casual employees and changes to overtime for full-time and part-time employees.

Practical Implications for employers

Employers are reminded to regularly review any applicable modern award to ensure they are meeting their obligations.  Under section 45 of the Fair Work Act 2009 (Cth) (‘FW Act”), a person must not contravene a term of a modern award.  This section is a civil remedy provision under the FW Act, meaning that a breach of a modern award provision may attract substantial civil penalties for a body corporate as well as any individual involved in the breach.  HR Law can assist you in understanding your modern award obligations to ensure compliance.  

Standing down employees under the FW Act

An employer may stand down employees without pay in certain circumstances under the FW Act.

Specifically, section 524(1) of the FW Act provides that an employer may stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:

• industrial action (other than industrial action organised or engaged in by the employer);

• a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;

• a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

However, an employer may not stand down an employee under section 524(1) of the FW Act during a period in which the employee cannot be usefully employed because of an instance referred to in (1) if:

• an enterprise agreement or an employment contract applies to the employer and the employee; and

• the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance (see section 524(2) of the FW Act). 

An enterprise agreement or employment contract may also include terms that impose additional requirements that an employer must meet before standing down an employee, such as consultation or notice. 

If an employer stands down an employee during a period under subsection (1), the employer is not required to make payments to the employee for that period.

Deciding on whether a particular employee can be usefully employed is a question of fact and must be determined having regard to the particular circumstances relevant to the employer and the workplace.

Should an employee not agree with their employer’s decision to stand them down, an application can be made to the Fair Work Commission by the employee (or an employee organisation entitled to represent the industrial interests of the employee) to deal with a dispute in relation to stand down.

Recent Case Law

In the recent case of Ediz Nidai v Autonexus Pty Limited [2022] FWC 841, the validity of the stand down of an employee under the FW Act was challenged. 

The Facts

The Applicant was residing in a local government area declared an area of concern during the COVID-19 pandemic in September 2021.  The Applicant was engaged as a forklift driver in a warehouse that was located outside of the local government area of concern.

The NSW Government required authorised workers (i.e. a worker who met the requirements under the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021) in an area of concern to have received at least one dose of a COVID-19 vaccine to be able to work outside of the area of concern (unless a medical contraindication applied).  The Applicant indicated to the Respondent that he would not have received his first dose of a COVID-19 vaccine. Further, the Applicant did not provide evidence of an appointment to be vaccinated between 9 and 19 September 2021 or provide an approved medical exemption. Therefore, the Respondent stood down the Applicant without pay under section 524 (1)(c) of the FW Act.  Despite having been given the option by the employer to request to use his annual leave, the Applicant challenged the Respondent invoking the stand down provisions under section 524 of the FW Act and sought monetary orders for the period he was stood down.

The Fair Work Commission, held there had been no stoppage of work at the Respondent’s business as it was still in operation.  The Fair Work Commission found that as work had not stopped, it was not necessary for the Fair Work Commission to consider if the stoppage was (1) for a cause for which the Respondent could not be held responsible, or (2) if the Respondent could not usefully employ its employees.

Although the stand down was not authorised under s524 of the FW Act, the Fair Work Commission considered that:

• the Respondent’s decision to stand down the Applicant was due to the extraordinary circumstances of the pandemic;

• it was the Applicant’s decision to not provide evidence of vaccination status,  and concluded considerations of fairness weighed against making the orders sought by the Applicant and, as such, the Commission declined to make the orders sought.

Lessons for employers

An employer’s decision to stand down employees under s524 of the FW Act has serious consequences for employees as they do not receive pay for the period of the stand down.  If not done lawfully, the employer may face expensive back payment claims.  HR Law can advise you on this complex area of law and your rights as an employer when standing down employees.